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Bilkis Bano Case: Sets Aside But Leaves Victim Notice Question Unanswered
India's sentence framework has long operated as a closed-door dialogue between the convict and the State, with the victim—the very person against whom the crime was committed—rendered a silent spectator. The recent judgment in the Bilkis Bano case brought this structural asymmetry into sharp focus, yet the Court's ruling carefully sidestepped the core question: does the victim have a to be heard before a order is passed? By quashing the on narrow , the corrected an egregious error but left the deeper gap in the legal framework untouched.
The Framework Under Section 473 BNSS
empowers the "" to suspend or remit a sentence, in whole or in part, either on its own motion or upon an application by the convict. imposes a mandatory fourteen-year actual imprisonment for life convicts whose offence was punishable with death, and governs . Parallel exist under for the President and Governor, respectively.
Notably, none of these provisions require the government to notify, consult, or even locate the victim before taking a decision. This is not an oversight in an otherwise victim-conscious statute. The BNSS defines "victim" and confers specific participatory entitlements: a right to appeal against acquittal or inadequate compensation under , a right to engage counsel to assist the prosecution under , and a right to seek compensation under . The , in (the Lakhimpur Kheri matter), has also read a at the bail stage into the statutory definition of victim. Yet, no comparable right extends to the power under Section 473. The same victim who can challenge an acquittal or oppose bail has no standing when the convict's sentence comes up for years later.
The Bilkis Bano Judgment: A Correction, Not a Precedent
In , the remitted the sentences of eleven convicts in the Bilkis Bano case, applying a policy that predated the state's own revision barring for rape and murder convictions. Bilkis Bano was not informed; she and three other petitioners learned of the decision through public reporting and approached the directly.
In
, decided on by a bench of Justices B.V. Nagarathna and Ujjal Bhuyan, the set the aside. The rested on two grounds distinct from any right of the victim to be consulted. First, the Court held that Gujarat was not the "" competent to entertain the applications—that role belongs to , the state where the offenders were sentenced. Second, the Court found that its own earlier order directing Gujarat to consider the applications had been obtained through and was a , going so far as to hold it
. As the source notes,
"The judgment does not hold, as either
or
, that a victim possesses a statutory or constitutional entitlement to notice or hearing before a
decision is made."
The outcome corrected a jurisdictional defect, but it did not establish a general right of victims to participate in proceedings. The Court had the opportunity to read such a requirement into the statutory framework, especially given the at other stages, but it chose not to.
The Asymmetry Deepens
If anything, the legal landscape has become more lopsided in recent years—not because the victim's position has weakened, but because the convict's position has continued to strengthen on the very same provision. already allows the government to suspend or remit "at any time," with or without an application. In
In Re: Policy Strategy for Grant of Bail
(), the held that it is the government's duty to
automatically
consider every eligible convict for
once the applicable policy's conditions are met, removing even the need for the convict to apply. The ruling was framed as convict-protective, removing a procedural obstacle that left eligible prisoners languishing. But as the source observes,
"The class of persons the government must actively think about before remitting a sentence has, if anything, grown wider on the convict's side of the ledger and stayed exactly as empty as before on the victim's."
This asymmetry is not merely theoretical. The laid down in —whether the offence was an individual act not affecting society, possibility of recurrence, loss of potential to commit crime, purpose of continued incarceration, and socio-economic condition of the convict's family—is entirely oriented toward the convict or an undifferentiated notion of society. None requires the government to ascertain the victim's current safety, residence, or view.
Available Recourse: Reactive and Limited
Where a order suffers from no jurisdictional defect, the affected party's only recourse is judicial review on the narrow grounds recognised in : lack of application of mind, , , or . Notably, the petitioners in Epuru Sudhakar were themselves relatives of murder victims challenging a granted without prior notice. In the absence of a statutory notice requirement, the principal recourse is to challenge the decision after it has been made, and only on grounds concerning the government's decision-making process, not on any ground going to the victim's own interest in being heard.
An Unresolved Gap
The absence of a notice requirement in Section 473, read against the presence of comparable rights elsewhere in the same statute, reflects an underlying assumption that
is a matter between the convict and the State alone. As the source argues,
"Whether that assumption should continue to hold once Indian criminal procedure has already accepted victim participation at the appellate and bail stages is a separate question."
The Bilkis Bano litigation did not require the Court to answer it. Until the legislature extends a
to Section 473 comparable to what exists under
, or a court reads such a requirement into the
framework, the law does not presently recognise a general statutory right of a victim to notice or representation before a
decision is made.
The silence of the victim in India's framework is not an oversight; it is a structural feature of a power traditionally understood as rather than adjudication. But as the criminal justice system increasingly acknowledges the victim's role—at bail, at trial, and on appeal—the continued exclusion from proceedings becomes harder to justify. The Bilkis Bano case may have been a correction, but it also served as a stark reminder of the work that remains.
